P (A Child)

An order authorising adoption is a measure of last resort. It is justified only where the child’s interests make it necessary and nothing else will do. The court must identify the nature, gravity and likelihood of the harm feared in parental care. It must then consider available safeguards, family support, the parent’s positive qualities and the benefits of upbringing within the natural family.

Disputed allegations are not facts. Where they materially affect the welfare decision, evidence and findings are required. The judgment must demonstrate a proper balancing and proportionality analysis. On appeal, the normal reviewing approach applies, with appropriate respect for the trial judge’s advantages, but the appellate court must also review compliance with article 8.

The father appealed against orders concerning his young daughter, including a care order based on a plan for adoption and a placement order. He also challenged earlier refusals to permit psychological and independent social work assessments.

The child had suffered grave non-accidental injuries while living with her mother and the mother’s boyfriend. The father was not involved in those injuries. The case against placing the child with him centred principally on his alleged aggression, the emotional harm associated with parental conflict and whether improvement could be established within the child’s timescale.

The central issue was whether the judge had adequately established the factual basis of the alleged risks and conducted the balancing and proportionality analysis required before excluding family care and approving adoption.

1. The appeal against the care and placement orders was allowed. The judge had failed to conduct a proper balancing exercise to determine whether those orders were necessary, or her judgments failed to demonstrate that exercise. The matter was remitted to another judge for urgent reconsideration from the welfare stage. No view was expressed on whether the child should ultimately live with her father.

2. Adoption is a very extreme measure and a last resort. In accordance with In the matter of B (a child) [2013] UKSC 33, it is permissible only where the child’s interests make it necessary, nothing else will do and all other options have failed. The judge gave insufficient attention to that governing standard.

3. The court had to identify the precise harm feared in the father’s care, its likelihood and its gravity. Physical and emotional care required separate, focused consideration. It was then necessary to examine whether therapy, family assistance or social services support could prevent the harm. Any residual risk had to be weighed against the father’s positive qualities and the benefits to the child of upbringing within her natural family.

4. The factual basis of the alleged aggression was uncertain. Allegations denied by a parent are not facts. If a local authority needs disputed matters to support the welfare outcome, it must adduce evidence and invite findings. Professional assessments and opinions are reliable only to the extent that their factual foundations are identified and established.

5. The judge had not sufficiently addressed the positive evidence about the father’s prior care, his family support, his therapy or the mitigating context of his dealings with the local authority. Those omissions undermined the assessment of whether adoption was proportionate.

6. The ordinary reviewing approach governed the appeal. Proper weight was given to the trial judge’s advantage in seeing and hearing witnesses. The appellate review nevertheless extended to whether the orders complied with article 8 of the European Convention on Human Rights.

7. The appeal against refusal of a psychological assessment was dismissed. That case-management decision was open to the judge because the local authority’s assessment could be challenged through factual dispute, cross-examination and evidence of remedial work. The independent social work issue was subsumed within the successful challenge to the final orders.

1. Court of Appeal (Civil Division): The appeal against the care and placement orders was allowed and the welfare stage was remitted urgently to another judge. The appeal concerning the psychological assessment was dismissed, while the independent social work issue was treated as subsumed within the successful appeal.

2. Nottingham County Court: HHJ Butler QC refused a psychological assessment on 26 April 2012, made an interim care order with a care plan for adoption and refused an independent social work assessment on 23 August 2012, and made a placement order under section 52(1)(b) of the Adoption and Children Act 2002 on 4 October 2012.